Abstract

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Are Antitrust 'Treble' Damages Really Single Damages?

This Article will show that antitrust violations do not actually give rise to "treble" damages. When viewed correctly, antitrust damages awards are approximately equal to, or are in fact less than, the actual damages caused by antitrust violations.

The article demonstrates this by analyzing the relatively quantifiable harms from antitrust violations, modeling the issues under both deterrence and compensation frameworks. It calculates rough estimates of those factors that affect the magnitude of the antitrust damages multiplier actually awarded. These adjustments to the "treble" damages multiplier arise from: (1) the lack of prejudgment interest; (2) the effects of the statute of limitations; (3) plaintiffs' attorneys' fees and costs; (4) other costs to plaintiffs pursuing cases; (5) costs to the judicial system in handling antitrust cases; (6) "umbrella" effects of market power; (7) allocative inefficiency effects of market power; and (8) tax effects.

The article then combines these adjustments using both deterrence and compensation frameworks. It compares the sum of the damages caused by antitrust violations to the typical amounts awarded to successful plaintiffs to determine, on average, the true effective ratio of recovery to damages. This analysis show that when all the appropriate adjustments are considered together, awarded damages are, at most, probably at the single level. From either a deterrence or compensation perspective, the Article concludes by discussing some implications of this finding in light of the consensus that antitrust damages should be substantially higher than singlefold to account for detection problems, proof problems, and risk aversion. For these reasons the Article urges that antitrust damages levels be raised by, for example, awarding prejudgment interest.